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United States v. Pena

United States District Court, D. New Mexico

November 15, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TOMMY PEÑA, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING UNITED STATES' REQUEST FOR UPWARD VARIANCE

         THIS MATTER comes before the Court following a hearing on the United States' Objections to the PSR and Sentencing Memorandum (Doc. 200, filed 6/8/18), Defendant's Sentencing Memorandum (Doc. 205, filed 7/26/18), and the United States' Objections to Addendum to Presentence Report (Doc. 214, filed 9/8/18). The Court has reviewed the parties' pleadings, [1] including Defendant's Response to the Addendum to the Presentence Report and United States' Objections (Doc. 216, filed 9/26/18), as well as the reports from the United States Probation Office (Docs. 182, 190, 212). The Court has considered the arguments made by counsel and reviewed the testimony and exhibits submitted at the September 10, 2018 hearing. Upon considering this record and the applicable law, the Court grants the United States' request for an upward variance to a total sentence of thirty years in the resentencing of Defendant Tommy Pena for the reasons stated below.

         STATEMENT OF THE CASE[2]

         Based on the series of events that transpired between April 6, 2010, and April 19, 2010, Defendant was found guilty by this Court of four counts of being a felon in possession of a firearm and/or ammunition in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2) (Counts 6, 8, 14, 15), one count of conspiracy to commit carjacking in violation of 18 U.S.C. § 371 (Count 1), one count of carjacking and aiding and abetting in violation of 18 U.S.C. § 2119 and § 2 (Count 2), one count of possession of methamphetamine in violation of 21 U.S.C. § 844(a) (Count 16), and one count of using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4). Doc. 96, Judgment, filed 12/7/11; Doc. 71, Findings of Fact and Conclusions of Law, filed 5/13/11. At the time, Defendant was exposed to an enhanced sentence as an Armed Career Criminal. PSR, ¶¶ 63-64; Doc. 182. The Court imposed a total sentence of 480 months' imprisonment with five years' supervised release, which was within the United States Sentencing Guidelines (“Sentencing Guidelines”) range under the 2010 version of the Sentencing Guidelines. Doc. 96; PSR, ¶ 104.

         After the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), Defendant no longer met the technical requirements of being an Armed Career Criminal, and he successfully filed a petition for resentencing under 28 U.S.C. § 2255. See Docs. 180, 181. The Court determined that Defendant would be resentenced under the 2016 United States Sentencing Guidelines, and the parties submitted extensive briefing on the advisory Sentencing Guidelines range and on the United States' request for an upward variance to a total sentence of thirty years' incarceration. There was a hearing before this Court on September 10, 2018, at which time counsel offered oral arguments and the United States presented the testimony of Reshay Childress of the Correctional Programs Division of the Bureau of Prisons in support of its request for an upward variance. The Court informed the parties at the hearing that it would take this matter under advisement to ensure the correct calculation of the advisory Sentencing Guidelines range. In the Memorandum Opinion and Order released on October 2, 2018, Doc. 217, the Court determined the proper advisory Sentencing Guidelines range for Defendant's resentencing is 63- 78 months based on an offense level of 22 and criminal history category IV, for a total adjusted range of 123-138 months' imprisonment with the § 924(c) sixty-month mandatory minimum consecutive sentence. The Court now considers the United States' request for an upward variance to a sentence of thirty years' imprisonment.

         BACKGROUND

         I. Factual Summary of 2010 Events

         After Defendant executed a knowing and voluntary waiver of jury trial (Docs. 53, 55), this Court conducted a bench trial on December 14 and 15, 2010. Doc. 57. Following the bench trial, the Court found Defendant guilty of Count 16 (possession of methamphetamine) and Counts 6, 8, 14, 15 (violations of § 922(g)). The Court allowed both parties to submit written arguments on Counts 1, 2, 4, 9, 10, and 12. On May 13, 2011, the Court filed the Findings of Fact and Conclusions of Law (Doc. 71) regarding four incidents underlying the charged conduct: the Lacey carjacking on April 6, 2010; the drive-by shooting on April 10, 2010; the Luna car theft on April 18, 2010; and Defendant's arrest on April 19, 2010. Doc. 71.

         A. April 6, 2010: Lacey Carjacking

         Defendant and his co-defendant Jeremy Conde (“Conde”) were hired by Isabel Saucedo (“Chavela”) to retrieve cash from the household of Arthur Lacey (“Lacey”) in retribution for Chavela's belief that Lacey had stolen cash from her that she was keeping in the Lacey household in Roswell, New Mexico. Doc. 71, ¶¶1-3. In the alternative to retrieving cash from the Lacey household, Pena and Conde agreed with Chavela that they could take a car that Chavela believed Lacey had purchased with the cash. ¶¶ 1-3. Chavela promised to pay Conde and Pena with an ounce of methamphetamine, which had a street value of about $1, 500. ¶ 4. Chavela had supplied Collette Lacey, Arthur's wife, with methamphetamine for years. Id. Conde, Pena, and Chavela went to the Lacey home on April 6, 2010. ¶ 6. Pena carried a 9 mm handgun that was loaded; Conde carried a firearm with bullets in the clip, but not in the chamber. ¶ 7. Chavela pointed to the 2000 Cadillac Eldorado in the front yard and said, “That's the car, ” meaning that was the car she wanted Pena and Conde to take. ¶ 9. When Lacey answered the door, Pena pointed the gun at Lacey's face and made gestures as though he intended to shoot Lacey. ¶¶ 11-12. As Pena and Conde entered the house, Lacey fled to a neighbor's house. ¶ 14. Conde and Pena ransacked the Lacey home in the presence of Lacey's wife, Collette Lacey (“Collette”), who was nine months pregnant, and her young children. ¶ 15. Conde pointed his gun at Collette and at one of the children, and Pena's gun remained in his pocket. ¶¶ 16, 18. As Pena was leaving the house with various stolen items, Pena noticed some keys near the door. ¶ 21. He backed up, grabbed the keys to the Cadillac, and left the house. ¶ 21. Pena drove away in the Cadillac. ¶ 23.

         Regarding the events that took place at the Lacey house on April 6, 2010, Defendant was charged with one count of conspiracy to commit carjacking (18 U.S.C. § 371) (Count 1), one count of carjacking and aiding and abetting (18 U.S.C. § 2119 and § 2) (Count 2), one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1) and § 924(a)(2)) (Count 6), and one count of using and carrying a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)) (Count 4). The Court found Defendant guilty of the four counts related to the Lacey incident.

         B. April 10, 2010: Drive-By Shooting

         In the evening of April 10, 2010, Conde and Pena drove down East Ballard Street in Roswell and Pena fired several shots at the people on the street with a 9 mm handgun, which was the same handgun used by Pena at the Lacey carjacking. Doc. 71, ¶¶ 26-27. Conde testified that a group of people initiated the shooting, and that he was shot. Doc. 60, Tr. bench trial at 142:6- 149:18. In return, both Pena and Conde fired shots at the people on the street in Roswell. Id. Conde testified that Pena shot back at the group of people by putting his arm out the window of the passenger side and shooting over the roof of the vehicle. Id. at 143:8-23. This shoot-out occurred in the grassy area in front of an apartment building in Roswell. Id. at 141:19-24. Pena was charged with one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1) and § 924(a)) (Count 8), of which the Court found him guilty.

         C. April 18, 2010: Luna Car Theft

         In the afternoon of April 18, 2010, Conde and Pena were leaving the house where Pena was staying at the time when they noticed Fred Luna (“Luna”) drive by them. Doc. 71, ¶¶ 30-31. Conde and Pena thought Luna was “mad-dogging” them by cursing at them and giving them a “hard look, ” so Conde and Pena decided to borrow Pena's sister's vehicle to follow Luna. ¶¶ 31- 32. Conde was armed with a loaded .22-caliber handgun and Pena was armed with a black semiautomatic handgun. ¶ 33. After Luna noticed he was being followed, he pulled into a church entrance and jumped out of his truck, leaving the door open and the ignition running. ¶ 35. The doors of the church were locked and Luna could not enter. ¶ 36. At that point, Conde and Pena pulled into the church parking lot. ¶¶ 37-38. Conde exited the vehicle and Pena stayed inside; they both pointed their guns at Luna. ¶ 38. Pena called Luna a “pussy” and told Luna that he was going to “get” Luna as he aimed his gun at Luna. ¶ 39. Luna testified that Pena had his gun “pretty close” to him when they were in front of the church, and that he could see the gun clearly. Doc. 60, Tr. bench trial at 234:13-25. Luna testified that it was a Sunday evening when he attempted to enter the church, and that he later thought there were children inside, although he was unaware of that at the time. Id. at 235:13-19.

         Luna started running away to exit the church parking lot. Doc. 71, ¶ 40. Pena noticed that Luna's truck was still running and mentioned this fact to Conde; at the time of this comment, Luna was almost out of the parking lot and into the street. ¶ 41. Conde got into the truck and drove away. ¶ 42. As Conde was driving away, Luna started running back towards the truck, but after Pena urged Luna to “do it” and asked what he was going to do, Luna decided the truck was not worth being shot. ¶ 45. Conde and Pena took the truck to an abandoned house and tore out the stereo and speakers, then wiped the truck down and left it. ¶ 47.

         Regarding the events that took place April 18, 2010, Defendant was charged with one count of carjacking and aiding and abetting (18 U.S.C. § 2119 and § 2) (Count 10), one count of conspiracy to commit carjacking (18 U.S.C. § 371) (Count 9), one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1) and § 924(a)) (Count 14), and one count of using and carrying a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)) (Count 12). Of these charges related to the Luna events, the Court found Defendant guilty of only the offense conduct in Count 14. The Court found the evidence was not sufficient to support a conviction on the related three counts because “at the time intent to steal the truck was formed, and at the time the truck was actually stolen, Luna was not ‘sufficiently near to the vehicle for it to be within reach, inspection, or control and, absent threat or intimidation, to be able to maintain control of it.'” ¶ 28 (citing United States v. Brown, 200 F.3d 700, 705 (10th Cir. 1999)). The Court could therefore not find Pena guilty of aiding and abetting the underlying offense conduct in Count 10, nor was the evidence sufficient for the conspiracy charge in Count 9 as alleged in the indictment. ¶ 31. Finally, the evidence was insufficient to support the indictment charge for violation of § 924(c) in Count 12 that Pena used or carried a firearm during and in relation to the crime of carjacking the truck on April 18, 2010 because no carjacking occurred. ¶ 33.

         D. April 19, 2010: Pena's Arrest

         Pena was a passenger in a white Nissan that failed to stop when a Roswell police officer activated his emergency lights. Doc. 71, ¶ 49. A chase ensued, and after the vehicle wrecked into a curb, Pena fled on foot and was eventually stopped. ¶ 49. The Court found that when Defendant was arrested on April 19, 2010, he was in possession of two black shotguns, one of which was loaded with five rounds, almost a hundred rounds of miscellaneous ammunition, and 6.4 grams of methamphetamine. Doc. 71, ¶¶ 49-51. He was charged with one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1) and § 924(a)) (Count 15) and one count of possession of methamphetamine (21 U.S.C. § 844(a)) (Count 16). The Court found Defendant guilty of both counts.

         II. Procedural posture

         At the original sentencing in 2011, Pena was exposed to an enhanced sentence as an Armed Career Criminal because of two felony convictions for shooting at a dwelling, in violation of NMSA § 30-3-8(A), and a conviction for aggravated assault with a firearm, in violation of NMSA § 30-3-2. PSR, ¶¶ 63-64; Doc. 180 at 4. The Court determined that Count 4 carried a mandatory minimum sentence of 7 years' imprisonment for using and brandishing a firearm in relation to the carjacking that occurred on April 6, 2010, pursuant to § 924(c)(1)(A)(ii). PSR, ¶¶ 67, 103. With enhancements as an Armed Career Criminal and as a Career Offender, the advisory Sentencing Guidelines range was calculated to be 360 months' incarceration to life imprisonment. PSR, ¶¶ 63-64, 104. The Court adopted the PSR and imposed 180 months' incarceration as to Counts 1 and 2; 360 months' incarceration as to Counts 6, 8, 14, and 15; and 12 months' incarceration on Count 16, all of which were to run concurrently. The Court imposed 120 months' incarceration on Count 4, which was to run consecutively, pursuant to § 924(c)(1)(A)(ii) and U.S.S.G. § 2K2.4(b). In total, the Court imposed 480 months' imprisonment, which was within the advisory Sentencing Guidelines' range. Doc. 96; PSR, ¶ 104.

         The Supreme Court of the United States invalidated the Armed Career Criminal Act's (“ACCA”) “residual clause” in United States v. Johnson, 135 S.Ct. 2551 (2015), which formed the basis of Defendant's motion for relief under 28 U.S.C.§ 2255. Docs. 152, 160. This Court adopted the Proposed Findings and Recommended Disposition in an Order granting in part Defendant's request for resentencing without the ACCA enhancement and denying Defendant's motion in all other respects. Doc. 181, filed 2/1/18.

         After briefing from the parties regarding which version of the Sentencing Guidelines was applicable for resentencing, the Court ruled that Pena would receive a de novo resentencing under the 2016 Sentencing Guidelines. Doc. 193, filed 4/6/18. Upon extensive briefing from the parties and reports from Probation about the proper Sentencing Guidelines calculations, the Court ruled that the correct Sentencing Guidelines range in this matter is 63-78 months based on an offense level of 22 and criminal history category IV. Doc. 217, filed 10/2/18. All parties were in agreement that although Pena was previously sentenced according to a seven-year mandatory minimum for brandishing a firearm pursuant to § 924(c), he is correctly subject to a five-year mandatory minimum for possession of a firearm in violation of § 924(c) due to the indictment's omission of the brandishing element. Doc. 217 at 9 n.1. Thus, the total Sentencing Guidelines range in this matter is 63-78 months, which comes to 123-138 months with the § 924(c) sixty-month mandatory minimum. The parties have now extensively briefed, presented oral arguments, and offered evidence about the Government's request for an upward variance to a total sentence of thirty years in the matter of Pena's resentencing. See Docs. 200, 205, 208, 211, 214, 216; Clerk's Minutes from Sept. 10, 2018 hearing, Doc. 215; Transcript of Sept. 10, 2018 hearing, Doc. 221.

         DISCUSSION

         I. Sentencing Law

         As the Tenth Circuit has explained, “a district court's mandate is to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of section 3553(a)(2).” United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007) (citation omitted); 18 U.S.C. 3553(a)(2).[3] Section 3553(a) states the factors the district court must consider when crafting a sentence to satisfy the goals stated in § 3553(a)(2). Still, the district courts have wide discretion in assigning weight to these factors. United States v. Yanez-Rodriguez, 555 F.3d 931, 946 (10th Cir. 2009) (“[D]istrict courts have broad discretion to consider particular facts in fashioning a sentence under 18 U.S.C. § 3553(a), even when those facts are already accounted for in the advisory guidelines range.”). Thus, “after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.” Gall v. United States, 552 U.S. 38, 49-50 (2007). The Circuit has stated that “there are perhaps few arenas where the range of rationally permissible choices is as large as it is in sentencing, ” which is “a task calling on a district court's unique familiarity with the facts and circumstances of a case and its judgment in balancing a host of incommensurate and disparate considerations, ranging from the degree of the defendant's cooperation and remorse to the need for deterring potential future offenders.” United States v. McComb, 519 F.3d 1049, 1053-54 (10th Cir. 2007) (quoting United States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007)).

         One of the sentencing factors provided in § 3553(a) is consideration of the properly calculated Sentencing Guidelines range based on the offense conduct and the criminal history category of the defendant. § 3553(a)(4). The Supreme Court of the United States explained in Gall v. United States, 552 U.S. 38 (2007), that although the Sentencing Guidelines are advisory, they “should be the starting point and the initial benchmark[]” in determining a sentence. 552 U.S. at 49. The Supreme Court further stated that if the judge “decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one.” Id. at 50. The Gall Court rejected the notion, however, of a “rule that requires ‘extraordinary' circumstances to justify a sentence outside the Guidelines range” and of “the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” 552 U.S. at 47; see also United States v. Lente, 759 F.3d 1149, 1158 (10th Cir. 2014). Therefore, there are no “magic words” the court is required to recite at sentencing, but the court must “explain its reasons for imposing a sentence.” United States v. Martinez-Barragan, 545 F.3d 894, 902-03 (10th Cir. 2008). While there is no requirement that the court “explicitly refer to either the § 3553(a) factors or respond to every argument for leniency that it rejects in arriving at a reasonable sentence[, ]” the court must address “the material, non-frivolous arguments made by the defendant.” Yanez-Rodriguez, 555 F.3d at 948; United States v. Pinson, 542 F.3d 822, 833 (10th Cir. 2008).

         II. Application of Section 3553(a) sentencing factors

         In accordance with this Court's sentencing authority, the Court explains below the sentencing factors to which it gives significant weight in crafting a sentence that is sufficient but not greater than necessary to meet the goals of sentencing.[4]

         A. Section 3553(a)(4): Consideration of the kinds of sentence and sentencing range

         The Court previously determined that the correctly calculated Sentencing Guidelines range in the matter of Defendant's resentencing is 63-78 months, plus a consecutive term of sixty months for the § 924(c) mandatory minimum, for a total advisory Sentencing Guidelines range of 123- 138 months. Doc. 217. The Court devoted significant time to determining the proper Sentencing Guidelines range because the Supreme Court has made clear that the first step in federal sentencing is to determine the correctly calculated advisory Sentencing Guidelines range. Gall, 552 U.S. at 49. Upon consideration of the applicable Sentencing Guidelines range, the Court finds that a total sentence of 123-138 months is woefully inadequate to accomplish the goals of sentencing in this case. For the reasons described below, the Sentencing Guidelines range of 123-138 months fails to capture the seriousness and dangerousness of Pena's offense conduct, the ongoing threat he poses to public safety, and adequate deterrence in light of the high likelihood that he will reoffend.

         Contrary to Defendant's assertion, the Court does not treat the forty-year sentence it previously imposed in 2011 as the starting point for this analysis on re-sentencing. See Doc. 211 at 4. Thus, the Court rejects Defendant's argument that this Court is not considering the correctly calculated advisory Sentencing Guidelines range as the starting point for the upward variance (see Doc. 211 at 4), as this Court has carefully and thoroughly examined whether a sentence within the advisory Guidelines range would meet the goals of sentencing in this matter-the Court concludes it would not, but the Guidelines range does constitute the starting point in the following analysis.

         B. Section 3553(a)(1): Consideration of the nature and circumstances of the offense and the history and characteristics of defendant

         1. Nature and circumstances of the offense

         As explained in the factual recitation, Defendant was convicted of offense conduct comprised by four instances of firearms possession over a short period of time, which are grouped into a single unit for the purposes of the Sentencing Guidelines under USSG § 3D1.2. See Doc. 271 at 15. As the Government phrases it, Pena engaged in a “three-week reign of terror, ” Doc. 200 at 9, during which he used, brandished, and possessed multiple firearms while committing state and federal offenses. The Court considers each of these instances individually to convey the overwhelming seriousness of the offense conduct.

         First, regarding the nature and circumstances of the Lacey carjacking on April 6, there are certain facts that make the Lacey home invasion and carjacking particularly reckless. Collette Lacey was nine months pregnant at the time Pena and Conde ransacked the home. She had at least two small children who were present, and the record reflects that Conde pointed his handgun at the face of the nine-year-old. While the Court found that Pena did not point his loaded handgun at Collette or at her children, Pena initiated the entry into the home by pointing his handgun at Arthur Lacey in a threatening manner when Lacey came to answer the door. The brandishing of firearms to gain entry to the home and during the ransacking of the residence in the presence of the children and the pregnant wife makes the co-conspirator conduct highly dangerous and reckless. The record does reflect that Collette Lacey had some relationship with Chevala, the woman who hired Pena and Conde to ransack the Laceys' home, through drug transactions, but the endangerment of the children and the full-term pregnancy implicates completely innocent victims. Neither the ...


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